NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

NESTOR GABRIEL PORTILLOHENRIQUEZ, 

Defendant-Appellant.

No. 16-10414 

D.C. No. 

4:15-cr-02319-CKJ-LCK-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted February 16, 2018

San Francisco, California

Before: SCHROEDER, TORRUELLA,** and RAWLINSON, Circuit Judges.

On December 2, 2015, Border Patrol agents arrested defendant-appellant 

Nestor Gabriel Portillo-Henriquez ("Portillo-Henriquez") in the Arizona desert upon 

suspicion that he was transporting marijuana from Mexico to the United States. 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Juan R. Torruella, United States Circuit Judge for the 

First Circuit, sitting by designation.

FILED

APR 6 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-10414 

After a trial, Portillo-Henriquez was convicted of possession with intent to distribute 

and conspiracy to possess marijuana with intent to distribute, in violation of 21 

U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Portillo-Henriquez appeals his 

convictions on two grounds, which we address in turn. We affirm.

1. Portillo-Henriquez first argues that it was plain error for a magistrate judge to 

conduct voir dire at his trial without his express consent. Neither defense counsel 

nor the government objected to the magistrate judge conducting the proceedings

during trial. When a defendant raises an issue on appeal that was not raised before 

the district court, we review only for plain error. See Federal Rule of Criminal

Procedure 52(b); United States v. Olano, 507 U.S. 725, 730-37 (1993); United States 

v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). We find no plain error here.

Portillo-Henriquez fails to carry his burden. Supreme Court precedent on this 

issue makes clear that a magistrate judge has the authority to conduct voir dire 

proceedings under 28 U.S.C. § 636(b)(3) if designated by a district judge and if 

express consent is given by the defendant. United States v. Gonzalez, 553 U.S. 242, 

250 (2008). The Supreme Court, though, has left open the question of whether 

"consent may be inferred from a failure by a party and his or her attorney to object 

to the presiding by a magistrate judge." Id., 553 U.S. at 253.

In the absence of binding Supreme Court or Ninth Circuit precedent on this 

matter, we conclude that even if there were error, it was certainly not plain. See 
3 16-10414 

United States v. Thompson, 82 F.3d 849, 856 (9th Cir. 1996) (noting that error cannot 

be plain when there is no controlling Supreme Court or Ninth Circuit precedent and 

the other circuits are split). 

Therefore, Portillo-Henriquez has not demonstrated that the district court 

plainly erred in taking his failure to object to the magistrate judge conducting voir 

dire as implied consent.

2. Portillo-Henriquez next argues that the district court abused its discretion by 

instructing a witness to answer a juror's question when the witness appeared reluctant 

to do so. He contends that under the circumstances, the witness felt compelled to 

oblige, and that the jury would interpret the instruction as an indication of the judge's 

bias. However, his argument ignores the context of the questioning and overlooks 

the procedural protections that were in place. First, both defense counsel and the 

government agreed that jury questions would be allowed. Second, defense counsel 

was afforded the opportunity to re-cross examine the witness following this question, 

during which counsel attempted to clarify the testimony. Third, there is no evidence 

that the district judge having asked the question would indicate to the jury that the 

judge was advocating on behalf of the government. In fact, the record demonstrates 

that the judge read the juror question to the witness verbatim.

It is settled law that "[a] federal trial judge . . . is more than a moderator or 

umpire. He has the responsibility to preside in such a way as to promote a fair and 
4 16-10414 

expeditious development of the facts unencumbered by irrelevancies." United States 

v. Harris, 501 F.2d 1, 10 (9th Cir. 1974) (quoting Smith v. United States, 305 F.2d 

197, 205 (9th Cir. 1962)). As such, a district judge has discretion to allow jurors to 

submit questions to witnesses. See United States v. Huebner, 48 F.3d 376, 382 (9th 

Cir. 1994) (holding that a trial court may permit jurors to submit questions for 

witnesses so long as the procedure for doing so is neutral and prejudice does not

result from any question asked).

The district court did not abuse its discretion when it instructed the witness to 

respond to the juror’s question. The record shows that proper procedures were in 

place and, furthermore, we cannot conclude that the jury would have arrived at a 

different outcome absent the instruction.

AFFIRMED